the archives of f/k/a . . .

   update (Oct. 12, 2007): Prof. Douglas Berman asked today, at his Sentencing Law & Policy weblog, “When and how will SCOTUS address residency restrictions?“. Doug says: “All these developments confirm my instinct that it is only a matter of time before the US Supreme Court is going to have to take up legal challenges to sex offender residency restrictions. It is interesting to speculate exactly when and how these issues will come before the High Court.”

Like Doug Berman, I am hoping the U.S. Supreme Court will help end the battles and debates and politico equivocating over the constitutionality of sex offender exclusion laws, by distinguishing its decision in Smith v. Doe, which upheld Alaska’s version of Megan’s Law – requiring sex offenders to register their addresses — as not amounting to unlawful ex post facto punishment. Ohio’s 1st District Court of Appeals, in Hyle v. Porter, offered the weak excuses that are typical of lower courts that have taken the easy, superficial (or, as David Hess says, “see no evil”) approach of upholding sex offender bans by blindly pointing to Smith v. Doe (see our discussion on Oct. 7). Far more honest and better-reasoned are cases such as Mikaloff v. Walsh, (Northern District of Ohio, Sept. 4, 2007), which refused to apply Ohio’s sex offender residency law retroactively. The Mikaloff opinion stressed:

“In upholding notification and registration requirements as nonpunitive restrictions, the Doe Court explicitly emphasized that these requirements “[did] not restrain activities sex offenders may pursue but leaves them free to change jobs or residences.” Doe, 538 U.S. at 100.“

In addition, see Kentucky v. Baker, (Case Number, 07-M-00604, etc., Martin J. Sheehan, District Judge), which notes that “residency restrictions carry major consequences above and beyond the location of one’s home.” And, see the John Does I – IV v. Indianapolis, (Fed. Dist. Ct. So.Dist. Indiana), which distinguishes Smith v. Doe in concluding that banishing sex offenders from the City limits is ex post facto punishment..

They’re Useless in Utica and Nuts in Newton. As our Schenectady PanderPols did in June, and despite reams of information that they’re acting foolishly and unconstitutionally, local politicians on the Oneida County Legislature, in Utica, NY, and the Town Council of Newton, NJ, passed sweeping sex offender exclusion laws yesterday. See “Stricter rules for sex offenders approved,” The Utica Observer-Dispatch (Oct ,10, 2007); and “Newton Residency Ban Approved,” New Jersey Herald, Oct. 11, 2007); also: “Newton Considering Sex-Offender Ban” (New York Times, Oct. 7, 2007).

And, no, the local leaders didn’t vote in a moment of hot blood or temporary insanity. Instead, after months of “deliberations,” the 29 legislators in Oneida County and the five-member Council in Newton voted deliberately, brazenly and unanimously. Not content with your run-of-the-mill unconstitutional residency exclusion zones:

• the Oneida County law doesn’t stop with banning the two highest levels of registered sex offenders from “maintaining a residence” (defined as the structure “where a person sleeps”) near parks, playgrounds, schools and child-care centers. The law also makes it a Class A Misdemeanor for the sex offenders to “enter” within 1500 feet of such places (via theparson.net). Merely driving through the exclusion zone on an expressway, or visiting a hospital or courthouse within the zone, violates the law, according to Assistant County Attorney Ray Bara. Not to be outdone,
• the Town of Newton, after considering mere 500, 1,000, 1,500 and 2,000 feet exclusion zones, decided to ban high-risk sex offenders from living anywhere in the 3 1/2-square mile town. Indeed, as NJHerald.com reported: “They ultimately settled on a town-wide ban, because those distances would create neighborhood pockets where sex offenders could live. Parents said they were concerned over their children’s safety as well as property values.”

Ohio State law professor Douglas A. Berman (of the award-winning Sentencing Law & Policy weblog) told the New York Times that “Creating residency exclusion zones can create a false sense of security.” Clearly, Doug hadn’t considered the ingenuity of the folks in Oneida County, when “He added that barring sex offenders from living in a town does not stop them from traveling through it.”

If you’ve been following the Schenectady sex offender escapades here at f/k/a (over a dozen posts, starting here, with links to each), you know I agree with Prof. Yung of SexCrimes weblog, who says the Newton exile law is “just a horrible idea.” Concur: Doug Berman at Sentencing Law & Policy; (Oct. 8, 2007). Similarly, at his Corrections Sentencing weblog, Ben Barlyn wrote: “And the definition of insanity is . . .“

” . . . a Jersey municipality, the township of Newton in Sussex County, intends to enact a total residency ban for convicted sex offenders. This despite two recent trial court rulings which have struck down partial residency restrictions enacted elsewhere on the ground that these restrictions are in direct conflict with, and preempted by, the State’s registration scheme, known, of course, as Megan’s Law. Go figure. “

You may recall that your f/k/a Editor welcomed the recent series Sex Offenders: A Flawed Law: from Gatehouse News Service. Despite my congenital skepticism toward politicians, I foolishly had hoped that press coverage as thoughtful and comprehensive as the Gatehouse Series, along with other well-written newspaper editorials, would help persuade local politicians that passing sex offender exclusion laws is an unwise and unworthy reaction to the sincere concerns of the public — and offer excellent cover, along with lawsuits challenging such laws, against voter backlash. Sadly, facts and reasoning appear to have no useful effects on the fearless pander-pols.

Thus, the Oneida County legislators ignored the lessons of the Gatehouse series, which ran in their local newspaper just last month (clearly in the hope of affecting the outcome of their so-called deliberations). See “Sex offenders make easy targets,” and accompanying articles, The Utica Observer-Dispatch (Sept. 3, 2007). The good pols in Utica apparently also refused to consider the arguments presented concerning nearby locales, such as Cicero, NY. They clearly were deaf to the issues raised in the excellent editorial, “Drawing Lines,” from the Syracuse Post Standard (Aug. 26, 2007). As we reported last month, that editorial discussed research and facts, and concludes:

“Communities considering sex offender residency restrictions must ask the
question: Do such laws truly make their communities safer? Or are there
more effective ways – electronic monitoring systems or safety zones, for
example – of keeping a watchful eye on the offenders most likely to
strike again?”

An all-too-typical local pol is Oneida County legislator Daniel N. LaBella, who spent 20 years as a Utica cop, unsuccessfully ran for county sheriff last year, and runs a security firm (that apparently is having some management problems). If you had hoped that law enforcement experience would have made LaBella especially respectful of constitutional protections or wary of feel-good legislation that would divert police resources from more urgent and effective work, you would have been very disappointed. Thus, according to WKTV:

“You can’t waiver because it might not hold up in court,” said Dan LaBella, an Oneida County Legislator for the 26th District. “That’s what our courts do laws are tested every day in court so we still have to do what we have to do as a legislative body to protect the citizens and I feel as though this was a good law to do so.”

Similarly, the Utica O-D tells us:

“Legislator Daniel LaBella, D-Utica, said the law was very well thought out and will help protect the safety of the children in Oneida County.

“I firmly believe we can limit the exposure to these types of people, and I truly believe it will help our community,” he said

Cognate claptrap was mouthed last night by pols in Newton. As the NJ Herald noted:

“Newton officials have said they are willing to accept the possibility of a court challenge in order to help deter future crimes from occurring.

” ‘I think we’ve waited long enough for the state to act. We have to take steps to protect our citizens,’ Newton Deputy Mayor Joseph Ricciardo said. ‘You have to do something’.”

The New York Times received similarly edifying responses from the folk in Newton:

[Detective Lt. Michael] Richards acknowledged that opponents of restrictions on sex offenders call them “feel-good legislation.” But, he said, the ordinances can be valuable in educating parents about potential threats in their town.

And if there is a legal challenge?

“So be it,” Mayor [Thea] Unhoch said. “My main concern is the safety of the children.”

Yep, “you have to do something,” no matter how futile, counterproductive, expensive or unconstitutional, it might be. Are the elected leaders who vote for such sex offender bans fools or knaves, or both?

I understand why the courts have granted legislative immunity to politicians for the votes they take on laws and for their participation in the law-making process. But, I really wonder — since we wisely discourage lawyers from filing frivolous and harassing lawsuits by imposing fines and professional discipline; and we hold police officers liable for their blatant violations of suspects’ rights — why we can’t figure out a way to punish legislators who recklessly pass remarkably unconstitutional laws [Of course, I'm certain we can't get them for merely promulgating really foolish ones, except at the ballot box]. Shouldn’t there be a bad faith exception to legislative immunity? Shouldn’t such constitutional recklessness sound in tort? It imposes great expenses on the taxpayer (in enforcement and lawsuit defense), needlessly burdens our courts, and (especially) subjects disfavored target groups to significant infringement on their rights, as well as the worry and expense of challenging the laws.

When politicians are pandering to public fears and prejudice, as they do with sex offender legislation, the ballot box will often offer inadequate deterrence or remedy for recklessly unconstitutional conduct. We need a penalty box that will help assure that the temptation to “do something” does not result in our political leaders passing mean-spirit, unlawful legislation. Any suggestions from my astute readers?

All this talk of pandering politicians (and thinking we can hope to change them) got me thinking of Master Issa and his treatment of fools. Here are a few, courtesy of his translator and our Honored Guest Poet, David G. Lanoue:

Heaven’s river–
maybe the fools of Kyoto
are crying

all sorts of fools
moon-gaze too…
winter prayers

accusing the pine
of foolishness…
evening mist

foolish crow
do you think this first snow
is my fault?

fool cat–
putting his whole body
into his yowl

fool cat
though tethered still crying
for love

fool cat–
eyes returning to where
the chestnut was

short summer night–
foolish flowers, clever flowers
bloom

the blind priest
with his red bowl…
shooing flies

crossing a bridge
behind a blind man…
frog

……………………………………… by Kobayashi Issa, translated by David G. Lanoue